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In re B.B.

Supreme Court of West Virginia

April 19, 2019

In re B.B.

          Cabell County 17-JA-117

          MEMORANDUM DECISION

         Petitioner Father J.B., by counsel Richard L. Vital, appeals the Circuit Court of Cabell County's October 9, 2018, order terminating his parental rights to B.B.[1] The West Virginia Department of Health and Human Resources ("DHHR"), by counsel Lee Niezgoda, filed a response in support of the circuit court's order. The guardian ad litem ("guardian"), Jacquelyn Biddle, filed a response on behalf of the child, also in support of the circuit court's order. On appeal, petitioner argues that the circuit court erred in terminating his parental rights.[2]

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the briefs, and the record presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Prior to the initiation of the instant proceedings, in 2016, the DHHR filed a child abuse and neglect petition against petitioner regarding two older children.[3] Petitioner was adjudicated as an abusing parent and granted a post-adjudicatory improvement period, which required petitioner to submit to drug screens, attend parenting and adult life skills classes, complete a Batterer's Intervention and Prevention Program ("BIPP"), and maintain stable housing and employment. However, petitioner failed to comply with the terms and conditions of his improvement period, was expelled from the BIPP, and was unable to continue visiting with his children because of his failure to complete that program. Ultimately, in April of 2017, the circuit court permitted petitioner to voluntarily relinquish his parental rights rather than proceeding to involuntarily termination.

         Approximately one month later, the mother gave birth to petitioner's third child, B.B., the only child at issue on appeal. Later in May of 2017, the DHHR filed the instant child abuse and neglect petition, in which it alleged that petitioner was previously expelled from the BIPP in a prior case and failed to complete his improvement period, ultimately resulting in the voluntary relinquishment of his parental rights. The DHHR concluded that petitioner's circumstances had not changed since the filing of the prior petition in 2016. The DHHR further alleged that petitioner and the mother were advised on multiple occasions that they were not to be in a relationship due to their respective Child Protective Services ("CPS") cases, but that they continued their relationship despite this directive. The petition also indicated that, upon taking custody of the child, petitioner "became belligerent and yelling, threatening to break people's windows out with a baseball bat."

         In October of 2017, the circuit court held an adjudicatory hearing wherein petitioner stipulated to the allegations contained in the petition. Specifically, petitioner testified that he "had an anger management issue" at the time the petition was filed and had previously relinquished his parental rights to two older children. The circuit court adjudicated petitioner as a neglecting parent and granted him a post-adjudicatory improvement period, which required that he submit to drug screens, attend parenting and adult life skills classes, and complete the BIPP, among other things.

         Petitioner was granted an extension of his improvement period in April of 2018. The circuit court held a dispositional hearing in September of 2018. Testimony established that petitioner missed several drug screens and attended only forty percent of his supervised visits with the child. At the visits he did attend, the child had to be reintroduced to petitioner due to the substantial gaps in time and was anxious in petitioner's presence. Petitioner also failed to bring any basic care items to the visits and was only attentive to the child "at times." Further, petitioner failed to complete the BIPP and parenting classes. In a report, the parenting provider stated that petitioner continued to lack accountability and blamed others.

         Petitioner testified that he missed drug screens due to his work schedule. Regarding visits, petitioner testified that he missed several due to his sickness, the child's sickness, and the child's unavailability. Petitioner stated that he did not complete the BIPP because the program refused to readmit him due to his prior expulsion, despite the circuit court's order that the program grant him re-entry. Petitioner further denied that he was belligerent, yelling, or threatening anyone at the time the child was removed from his home, as set forth in the petition.

         After hearing evidence, the circuit court found that there was "no reason to believe the conditions of neglect that continue to this day will substantially improve in the near future." Further, the circuit court found that the best interests of the child required termination of petitioner's parental rights and that there was no less restrictive alternative. It is from the October 9, 2018, dispositional order terminating his parental rights that petitioner appeals.[4]

         The Court has previously established the following standard of review in cases such as this:

"Although conclusions of law reached by a circuit court are subject to de novo review, when an action, such as an abuse and neglect case, is tried upon the facts without a jury, the circuit court shall make a determination based upon the evidence and shall make findings of fact and conclusions of law as to whether such child is abused or neglected. These findings shall not be set aside by a reviewing court unless clearly erroneous. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. However, a reviewing court may not overturn a finding simply because it would have decided the case differently, and it must affirm a finding if the circuit court's account of the evidence is plausible in light of the record viewed in its entirety." Syl. Pt. 1, In Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d 177 (1996).

Syl. Pt. 1, In re Cecil T., 228 W.Va. 89, 717 S.E.2d 873 (2011).

         On appeal, petitioner raises several assignments of error with regard to the termination of his parental rights. Petitioner argues that there was insufficient evidence to terminate his parental rights and specifically takes issue with the circuit court's finding that there was no reasonable likelihood that he could correct the conditions of neglect in the near future. According to petitioner, he complied with his improvement period in that he maintained suitable housing and employment. He asserts that he never tested positive for drugs and notes that the DHHR conceded that drugs were not an issue in his case. As such, petitioner avers that his missed drug screens should not have been part of the basis for terminating his parental rights. Moreover, petitioner argues that the evidence does not establish that he never completed his parenting and adult life skills classes. He further argues that he gave plausible reasons for why he was not able to complete the BIPP or visit the child consistently. Petitioner also takes issue with the circuit court's finding that termination was in the best interests of the child. He argues that no evidence was presented that his home would be "detrimental or harmful to the child" and that no evidence refuted the fact that he loves the child. As such, petitioner states that because "there is no evidence of physical, mental or emotional abuse to the child," the circuit court erred in terminating his parental rights.[5] Lastly, petitioner argues that the circuit court erred in failing to employ a less restrictive disposition. Upon our review, we find no merit in any of petitioner's arguments.

         Pursuant to West Virginia Code § 49-4-604(b)(6), circuit courts are directed to terminate parental rights upon findings that there is "no reasonable likelihood that the conditions of abuse and neglect can be substantially corrected in the near future" and when necessary for the children's welfare. West Virginia Code § 49-4-604(c)(3) clearly indicates that a situation in which there is no ...


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